UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

CAESARS ENTERTAINMENT CORPORATION

d/b/a RIO ALL-SUITES HOTEL AND CASINO

and Case 28-CA-060841

INTERNATIONAL UNION OF PAINTERS AND

ALLIED TRADES, DISTRICT COUNCIL 15,
LOCAL 159, AFL-CIO

NOTICE AND INVITATION TO FILE BRIEFS

On May 3, 2016, Administrative Law Judge Mara-Louise Anzalone issued a decision in

the above-captioned case, applying Purple Communications, Inc., 361 NLRB 1050 (2014), to
find that the Respondent violated Section 8(a)(1) of the National Labor Relations Act by
maintaining a policy prohibiting the use of its computer resources to send non-business
information. Under Purple Communications, employees who have been given access to their
employer’s email system for work-related purposes have a presumptive right to use that system
for Section 7–protected communications on nonworking time, unless the employer can
demonstrate that special circumstances necessary to maintain production or discipline justify
restricting that presumptive right. Id. at 1063. Excepting, the Respondent asks the Board to
overrule Purple Communications and, implicitly, to return to the holding of Register Guard, 351
NLRB 1110 (2007), enfd. in part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d
53 (D.C. Cir. 2009), that employees do not have a statutory right to use their employers’ email
system for Section 7 activity. Under the Register Guard standard, employers may lawfully
impose Section 7–neutral restrictions on employees’ nonwork-related uses of their email
systems, even if those restrictions have the effect of limiting the use of those systems for
communications regarding union or other protected concerted activity.

To aid in consideration of this issue, the Board now invites the filing of briefs in order to
afford the parties and interested amici the opportunity to address the following questions.

1. Should the Board adhere to, modify, or overrule Purple Communications?

2. If you believe the Board should overrule Purple Communications, what standard
should the Board adopt in its stead? Should the Board return to the holding of
Register Guard or adopt some other standard?

3. If the Board were to return to the holding of Register Guard, should it carve out
exceptions for circumstances that limit employees’ ability to communicate with
each other through means other than their employer’s email system (e.g., a
scattered workforce, facilities located in areas that lack broadband access)? If so,

1
 should the Board specify such circumstances in advance or leave them to be
determined on a case-by-case basis?

4. The policy at issue in this case applies to employees’ use of the Respondent’s
“[c]omputer resources.” Until now, the Board has limited its holdings to
employer email systems. Should the Board apply a different standard to the use
of computer resources other than email? If so, what should that standard be? Or
should it apply whatever standard the Board adopts for the use of employer email
systems to other types of electronic communications (e.g., instant messages, texts,
postings on social media) when made by employees using employer-owned
equipment?

In responding to these questions, the parties and amici are invited to submit empirical
evidence, including anecdotes or descriptions of experiences that the Board may find useful in
deciding whether to adhere to Purple Communications or adopt another standard.1

1
We note the similarity between our dissenting colleagues’ arguments and those made by
the dissenters to the grant of review and invitation to file briefs in Lamons Gasket Co., 355
NLRB 763 (2010). The majority there sua sponte sought reconsideration of Board precedent set
just 3 years earlier in Dana Corp., 351 NLRB 434 (2007). In a concurring opinion, former
Chairman Liebman rebuked the dissent’s arguments that reconsideration was unnecessary and
unprecedented, observing:
The dissent’s view of the proper role and function of a Federal administrative agency like
the National Labor Relations Board is unusual, particularly coming from within such an
agency. Compare, for example, the Supreme Court’s quite recent observation:
“An initial agency interpretation is not instantly carved in stone. On the contrary, the
agency . . . must consider varying interpretations and the wisdom of its policy on a
continuing basis,” . . . for example, in response to changed factual circumstances, or
a change in administrations.
National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967,
981 (2005), quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 863–864 (1984).
355 NLRB at 763 (emphasis added).
As for our decision to invite public briefing here on whether to overrule precedent, we
adhere to the view that doing so is a matter of discretionary choice on a case-by-case basis and is
not mandated by the Act, any Board rule or past practice, or by the Administrative Procedure
Act. As our colleague acknowledges, her contrary view reiterates the dissenting position
rejected by the majority in Raytheon Network Centric Systems, 365 NLRB No. 161 (2017).
Finally, we join dissenting Member McFerran’s pledge to keep an open mind with
respect to final disposition of the issues presented here. However, we do not accept her premise
that the Board must adhere to a policy choice made in a prior decision unless presented with
actual evidence of “significant problems and intractable challenges” created by that decision.
See generally FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (holding that an agency
“need not demonstrate . . . that the reasons for the new policy are better than the reasons for the
old one; it suffices that the new policy is permissible under the statute, that there are good

2
 Briefs not exceeding 25 pages in length shall be filed with the Board in Washington,
D.C., on or before September 5, 2018. The parties may file responsive briefs on or before
September 20, 2018, which shall not exceed 15 pages in length. No other responsive briefs will
be accepted. The parties and amici shall file briefs electronically by going to www.nlrb.gov and
clicking on “eFiling.” Parties and amici are reminded to serve all case participants. A list of
case participants may be found at http://www.nlrb.gov/case/28-CA-060841 under the heading
“Service Documents.” If assistance is needed in E-filing on the Agency’s website, please contact
the Office of Executive Secretary at 202-273-1940 or Deputy Executive Secretary Roxanne
Rothschild at 202-273-2917.

Dated, Washington, D.C., August 1, 2018

JOHN F. RING, CHAIRMAN

MARVIN E. KAPLAN, MEMBER

WILLIAM J. EMANUEL, MEMBER

reasons for it, and that the agency believes it to be better, which the conscious change of course
adequately indicates”).

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MEMBER PEARCE, dissenting.

I dissent from the majority’s decision to re-visit Purple Communications, Inc. 1 While I
support public input when the Board considers significant changes in precedent, I do not support
giving a golfer a mulligan simply because he or she wants to swing another club. Four years
ago, I carefully considered and decided Purple Communications, after an extensive exchange of
views with my colleagues and a thorough review of briefing by the public and the parties. In
Purple, the majority responded to the massive change in workplace technology and
communication where email has become “the most pervasive form of communication in the
business world” and a “natural gathering place” extensively used by employees to communicate
among themselves. 361 NLRB at 1055, 1057.

Nothing has changed since the issuance of Purple to warrant a re-examination of this
precedent. As Member McFerran points out in her dissent, there have been no intervening
adverse judicial decisions, Purple itself is currently pending before the Ninth Circuit Court of
Appeals, and the Respondent has not identified any change in workplace trends or presented any
empirical evidence suggesting that Purple Communications “will create significant and
intractable challenges for employees, unions, employers and the NLRB”, as posited in Member
Miscimarra’s dissent in Purple. The Respondent does not even bring new arguments for
consideration. The only thing new is the Board’s composition.2

On another point, the charging party in this case has suffered the consequences of several
dramatic shifts in Board law merely because the majority is intent on creating vehicles for
prematurely reversing precedent. Lest we forget, in The Boeing Company, 365 NLRB No. 154
(2017), the majority went out of its way to reverse sua sponte the Board’s decision in this case --
despite the fact that the charging party was not a party in Boeing and this case was pending
before the Ninth Circuit Court of Appeals. After Boeing issued, the court remanded this case to
the Board. And then when the charging party sought to protect its rights by moving to intervene
in Boeing in order to seek reconsideration of that decision -- the decision that stripped its victory
away -- the majority denied charging party’s request to intervene. Now, this majority, in its zeal
to revisit Purple Communications, has once again used this charging party as a punching bag.

Dated, Washington, D.C., August 1, 2018

MARK GASTON PEARCE, MEMBER

1
361 NLRB 1050 (2014)
2
The majority’s claim that it is doing nothing more than what the Board majority did in Lamons
Gasket Co. is disingenuous. In Lamons Gasket, 357 NLRB 739 (2011), the Board reversed
Dana Corp. – a case that reversed 41 years of precedent, based on a dubious view about
voluntary recognition that was contradicted by empirical evidence. 351 NLRB 434 (2007).

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Member McFerran, dissenting.

Less than 4 years ago, in Purple Communications, Inc., the Board held that “employee
use of email for statutorily protected communications on nonworking time must presumptively
be permitted by employers who have chosen to give employees access to their email,” unless the
employer can demonstrate that special circumstances necessary to maintain production or
discipline justify restricting that presumptive right.” 361 NLRB 1050, 1063 (2014). The Board
reached that conclusion after inviting and receiving briefs from amici,1 and after thoroughly
considering the views presented both in those briefs and by the dissenting Board members.

Now, the Respondent in this case has asked the Board to overrule Purple
Communications. However, the Respondent has not presented any new arguments, not already
considered by the previous Board, to suggest that Purple Communications was incorrectly
decided – indeed, the Respondent largely recycles the arguments made by then-Members
Miscimarra and Johnson in their dissents. The Respondent has not identified any adverse
judicial decisions that might warrant revisiting the decision.2 Similarly, Respondent has not
presented any empirical evidence, or even good reason to suspect, that Purple Communications
has proved problematic in practice, as predicted by critics of its holding.3 Nor has the
Respondent identified any recent workplace changes or new trends that would justify
reconsideration of Purple Communications.

In those circumstances, the majority’s decision to revisit Purple Communications is

premature, at best. Although the Board appropriately may revisit precedent when a compelling
reason exists, the majority’s decision to issue the present notice – which essentially gives an
open invitation to interested parties to attempt to generate such a compelling reason -- gets

1
Purple Communications, Inc., Case No. 21-CA-095151 et al., Notice and Invitation to File
Briefs (filed April 30, 2014), available at
http://apps.nlrb.gov/link/document.aspx/09031d45816e13ce.
Amicus briefs were filed by the American Federation of Labor and Congress of Industrial
Organizations, Service Employees International Union, labor law professor Jeffrey M. Hirsch,
the United States Chamber of Commerce, the Council on Labor Law Equality, a group of entities
consisting of the Coalition for a Democratic Workplace and nine other amici, the Employers
Association of New Jersey, the Equal Employment Advisory Council, the American Hospital
Association, the Retail Litigation Center, the National Grocers Association, the Food Marketing
Institute, the United States Postal Service, the Arkansas State Chamber of Commerce, and the
National Right to Work Legal Defense Foundation. Purple Communications, 361 NLRB at 1051
fn. 9.
2
In fact, Purple Communications itself has not even received full judicial consideration; the
employer’s petition for review of the Board’s decision (following a remand to the administrative
law judge) remains pending in the United States Court of Appeals for the Ninth Circuit.
Communication Workers of America v. NLRB, No. 17-70948 (9th Cir.), petition for review of
order reported at 365 NLRB No. 50 (2017).
3
In dissent, then-Member Miscimarra, for example, warned that the “new right [articulated by
Purple Communications], will create significant problems and intractable challenges for
employees, unions, employers, and the NLRB.” Purple Communications, 361 NLRB at 1086.

5
things backward.4 The better course would be to decline the Respondent’s request, and all
similar requests, until such time as the Board is presented with a genuine compelling reason to
reopen the debate resolved in Purple Communications.5

In short, I do not support the majority’s decision to revisit Purple Communications while
the decision remains pending in the Courts of Appeals and in the absence of adverse judicial
decisions and any evidence of changes in the workplace or problems caused by the Board’s
approach. But given that a majority of the Board is clearly determined to proceed, I support the
majority’s decision to return to the Board’s practice of seeking public participation before
reconsidering significant precedent. That practice had been in place and largely adhered to since
the 1950’s until it was abruptly abandoned late last year.6 If the Board is going to reconsider an
important precedent, then it is obviously better to seek public participation when doing so, and I
will consider with an open mind whatever evidence and public input might emerge from this

4
Notably, the majority’s notice exceeds the scope of the Respondent’s request to overturn
Purple Communications. In addition to asking whether the standard should revert to Register
Guard, 351 NLRB 1110 (2007), enfd. in part and remanded sub nom. Guard Publishing v.
NLRB, 571 F.3d 53 (D.C. Cir. 2009), or some alternative standard, the majority asks whether any
exceptions should be made for scattered workforces, facilities located in areas that lack
broadband access, or other special circumstances. Moreover, the notice suggests that the
majority seeks to go beyond deciding the present case, which concerns only email, to make
policy that reaches other forms of electronic communication. This approach resembles not
adjudication, but rulemaking – albeit rulemaking without following the process required by the
Administrative Procedure Act. As public statements from the Chairman have disclosed, the
Board is now contemplating rulemaking with respect to the joint-employer standard under the
National Labor Relations Act. In exercising its discretion to choose between adjudication and
rulemaking, the Board surely must explain its choice – here, too.
5
Certainly, the mere change in the composition of the Board since Purple Communications was
decided is not a reason to revisit the decision. See Brown & Root Power & Mfg., Inc., 2014 WL
4302554 (Aug. 29, 2014); UFCW, Local No. 1996 (Visiting Nurse Health System, Inc.), 338
NLRB 1074, 1074 (2003) (full Board), citing Iron Workers Local 471 (Wagner Iron Works), 108
NLRB 1237, 1239 (1954). Relatedly, the majority remarks that there is a perceived
inconsistency between my views on the appropriate circumstances in which to solicit public
input about the reconsideration of precedent and the views of a previous Board Member
(Chairman Liebman) in a personal concurring statement in case I did not participate in, and
which issued more than four years prior to the start of my service on this Board. I express no
views on the Board’s prior determination to seek briefing in Lamons Gasket, other than to note
that there appears to have been empirical evidence under discussion in that case that directly
spoke to the practical impact of the decision that was subject to reconsideration. Regardless, I
am entirely comfortable with any perceived tension between my views expressed here and those
expressed by Chairman Liebman in that case, because the question of what factors the Board
should take under consideration in determining whether to revisit precedent is a difficult
institutional issue that each Board Member must approach with his or her own independent
judgment.
6
See Raytheon Network Centric Systems, 365 NLRB No. 161, slip op. at 22 fn. 2 (2017) (and the
cases cited therein).

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process suggesting that Purple Communications should be revisited. I trust that my colleagues
will similarly give full consideration to whatever reliable, empirical information the Board may
receive – and that they will be fully open to adhering to current law should actual evidence of
“significant problems and intractable challenges” (in then-Member Miscimarra’s phrase) fail to
materialize.

Dated, Washington, D.C., August 1, 2018

LAUREN McFERRAN, MEMBER